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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
OSAGE SYSTEMS GROUP, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 95-4374983
(State of incorporation or organization) (I.R.S. Employer Identification No.)
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1661 East Camelback Road
Suite 245
Phoenix, Arizona 85016
(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
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Title of each class Name of each exchange on which
to be so registered each class is to be registered
Common Stock, par value American Stock Exchange, Inc.
$.01 per share
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If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [ X ]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form relates:
_______________________ (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act: None
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
COMMON STOCK
The Company is authorized to issue 50,000,000 shares of Common Stock, $.01
par value per share, of which 9,386,472 are currently outstanding as of November
17, 1998.
Holders of Common Stock have equal rights to receive dividends when, as
and if declared by the Board of Directors, out of funds legally available
therefor. Holders of Common Stock have one vote for each share held of record
and do not have cumulative voting rights.
Holders of Common Stock are entitled upon liquidation of the Company to
share ratably in the net assets available for distribution, subject to the
rights, if any, of holders of any preferred stock then outstanding. Shares of
Common Stock are not redeemable and have no pre-emptive or similar rights. All
outstanding shares of Common Stock are fully paid and non-assessable.
PREFERRED STOCK
Within the limits and restrictions contained in the Certificate of
Incorporation, the Board of Directors has the authority, without further action
by the stockholders, to issue up to 10,000,000 shares of Preferred Stock, $.01
par value per share (the "Preferred Stock"), in one or more series, and to fix,
as to any such series, the dividend rate, redemption prices, preferences on
liquidation or dissolution, sinking fund terms, if any, conversion rights,
voting rights, and any other preference or special rights and qualifications.
SERIES A $3.00 CONVERTIBLE PREFERRED STOCK
The Board of Directors authorized the designation of a series of Preferred
Stock as Series A $3.00 Convertible Preferred Stock (the "Series A Shares"),
with such rights and preferences as are described in the following summary.
During December 1997, the Company issued 122 Series A Shares for gross proceeds
of $3,660,000. With the exception of those remaining Series A Shares which
convert into 100,000 shares of the Company's Common Stock, all of the Series A
Shares have been converted to date.
- - Liquidation Preference
The Series A Shares shall have a liquidation preference of $30,000 per
Series A Share, plus any accrued dividends thereon. The holders of the Series A
Shares shall share ratably in all liquidation preferences. Accordingly, if the
Company shall liquidate or dissolve, after payment to all creditors, no
distribution shall be made to holders of the Company's Common Stock, unless
prior thereto holders of the Series A Shares have received $30,000 per share.
- - Dividends
The holders of the Series A Shares shall not be entitled to receive
dividends.
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- - Conversion
The holders of the Series A Shares have the right at any time to convert
the principal amount of the purchase price of the Series A Shares into shares of
Common Stock at a conversion rate (the "Series A Conversion Rate") of $3.00 per
share of Common Stock. $300,000 principal amount of the Series A Shares remain
outstanding as of the date hereof.
The number of shares of Common Stock into which each Series A Share shall
be convertible shall be subject to adjustment to protect against dilution in the
event the Company shall declare a stock dividend, make a distribution on the
Common Stock, divide or reclassify the outstanding shares of Common Stock.
- - Voting Rights
Prior to the conversion of the Series A Shares, the holders thereof shall
have no voting rights.
- - Redemption
All, but not less than all, of the Series A Shares may be redeemed at any
time by the Company at its sole discretion at $3.00 per Series A Share upon
thirty (30) days' written notice to the holders (the "Redemption Notice"),
provided that at the time of the Redemption Notice: (i) the average of the
closing bid and ask prices of the Company's Common Stock shall have exceeded
$5.00 for the twenty (20) trading days preceding the date of the Redemption
Notice; (ii) the shares of Common Stock issued or issuable upon conversion of
the Series A Shares are subject to an effective Registration Statement; and
(iii) the placement agent for the offering in which the shares were issued shall
have waived any restrictions upon the resale of such shares. The holders of the
Series A Shares shall be entitled to exercise their conversion option during
said thirty (30) day notice period.
- - Certificate of Designation
The terms described above are merely summaries of the salient features of
the Series A Shares. The actual terms are contained within a definitive
Certificate of Designation on file with the Delaware Secretary of State.
SERIES C CONVERTIBLE PREFERRED STOCK
The Board of Directors authorized the designation of a series of Preferred
Stock as Series C Convertible Preferred Stock (the "Series C Shares"), with such
rights and preferences as are described in the following summary. The Company
issued 105.3 Series C Shares during March, 1998; however, 55.3 of these shares
have been converted, to date. Accordingly, 50 Series C Shares remain outstanding
as of the date hereof.
- - Liquidation Preference
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The Series C Shares shall have a liquidation preference of $15,000 per
Series C Share. The holders of the Series A Shares and Series C Shares shall
share ratably in all liquidation preferences. Accordingly, if the Company shall
liquidate or dissolve, after payment to all creditors, and payment of the
liquidation preference to the holders of the Series A Shares, no distribution
shall be made to the holders of the Common Stock, unless prior thereto, holders
of the Series C Shares shall have received a liquidation preference of $15,000
per share.
- - Dividends
The holder of the Series C Shares shall be entitled to dividends only
when, as and if declared by the Board of Directors. The holder of the Series C
Shares will share with the holders of the Common Stock, on an "as converted"
basis, any dividends declared on the Common Stock.
- - Conversion
The Series C Shares shall automatically convert into shares of the
Company's Common Stock on the last day of each of the three month periods
following the issuance of the Series C Shares (March 18, 1998). $455,000 of the
Series C Shares were converted during August, 1998 and $375,000 of Series C
Shares were converted during October, 1998. The Series C Shares shall convert
into shares of Common Stock at a conversion rate (the "Series C Conversion
Rate") equal to the lower of: (i) $6.87 per share; or (ii) a 33% premium over
the average of the closing prices of the Company's Common Stock on the principal
exchange, automated quotation system or over-the-counter market upon which the
Company's Common Stock trades, for the ten trading days prior to the date of
each conversion.
- - Voting Rights
Prior to the conversion of the Series C Shares, the holder thereof shall
have no voting rights.
- - Redemption
The Series C Shares are not subject to redemption by the Company.
- - Certificate of Designation
The terms described above are merely summaries of the salient features of
the Series C Shares. The actual terms are described within the definitive
Certificate of Designation on file with the Delaware Secretary of State.
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PROVISIONS HAVING A POSSIBLE ANTI-TAKEOVER EFFECT
Delaware General Corporation Law
The Company is governed by the provisions of Section 203 of the GCL, an
anti-takeover law. In general, the law prohibits a public Delaware corporation
from engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is approved in
a prescribed manner. "Business combination" includes mergers, asset sales and
other transactions resulting in a financial benefit to the stockholder. An
"interested stockholder" is a person who, together with its affiliates and
associates, owns (or within three years, did own) 15% or more of the
corporation's voting stock.
The provisions regarding certain business combinations under the GCL could
have the effect of delaying, deferring or preventing a change in control of the
Company or the removal of existing management. A takeover transaction frequently
affords stockholders the opportunity to sell their shares at a premium over
current market prices.
The provisions described above, together with the ability of the Board of
Directors to issue Preferred Stock as described under "Preferred Stock," may
have the effect of delaying or deterring a change in the control or management
of the Company.
Certificate of Incorporation
One of the effects of undesignated Preferred Stock may be to enable the
Board of Directors to render more difficult or to discourage an attempt to
obtain control of the Company by means of a tender offer, proxy contest, merger
or otherwise, and thereby to protect the continuity of the Company's management.
The issuance of shares of the Preferred Stock pursuant to the Board of
Directors' authority described above may adversely affect the rights of the
holders of Common Stock. For example, Preferred Stock issued by the Company may
rank prior to the Common Stock as to dividend rights, liquidation preference or
both, may have full or limited voting rights and may be convertible into shares
of Common Stock. Accordingly, the issuance of shares of Preferred Stock may
discourage bids for the Common Stock or may otherwise adversely affect the
market price of the Common Stock.
The Company's Certificate provides for a classified Board of Directors and
that directors shall only be removed for cause and by a supermajority vote of
stockholder, and requires a supermajority vote of the stockholders to amend the
Certificate unless such amendment is adopted by the affirmative vote of at least
eighty percent (80%) of the members of the Board of Directors. These provisions
could delay or frustrate the removal of incumbent directors and could make more
difficult a change in control transaction.
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LIMITATIONS ON DIRECTORS' LIABILITIES, INDEMNIFICATION AND DIRECTORS' AND
OFFICERS' INSURANCE
The Company's Certificate of Incorporation and Bylaws reflect the adoption
of the provisions of Section 102(b)(7) of the GCL, which eliminate or limit the
personal liability of a director to the Company or its stockholders for monetary
damages for breach of fiduciary duty under certain circumstances. If the GCL is
amended to authorize corporate action further eliminating or limiting personal
liability of directors, the Certificate of Incorporation provides that the
liability of the director of the Company shall be eliminated or limited to the
fullest extent permitted by the GCL. The Company's Certificate of Incorporation
and Bylaws also provide that the Company shall indemnify any person, who was or
is a party to a proceeding by reason of the fact that he is or was a director,
officer, employer or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorney's fees) actually and reasonably incurred by him in
connection with such proceeding if he acted in good faith and in a manner he
reasonably believed to be or not opposed to the best interests of the Company,
in accordance with, and to the full extent permitted by, the GCL. In addition,
the Certificate of Incorporation and Bylaws authorize the Company to maintain
insurance to cover such liabilities. As of the date hereof, the Company has not
purchased Directors' and Officers' Liability Insurance.
Insofar as indemnification for liabilities under the Securities Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provisions or otherwise, the Company has been advised that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in a successful defense of any action, suit or
proceeding) is asserted by a director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issuer.
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ITEM 2. EXHIBITS
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Exhibit No. Description Method of Filing
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3.10 Certificate of Incorporation Incorporated by
reference to Exhibit 3.1
to Amendment No. 1 to the
Registrant's Registration
Statement on Form S-1
(Reg. No. 33-69380) filed
November 2, 1993
("Amendment No. 1 to Form
S-1")
3.11 Certificate of Designation, Exhibit 3.1 to
Preferences and Rights of Class A Registrant's Current
Non-Voting Convertible Preferred Report on Form 8-K dated
Stock March 11, 1998 (the
"March 11, 1998 Form 8-K")
3.12 Certificate of Amendment of Incorporated by reference
Certificate of Designation, to Exhibit 3.2 to the
Preferences and Rights of Class A March 11, 1998 Form 8-K
Non-Voting Convertible Preferred
Stock
3.13 Certificate of Restoration and Incorporated by reference
Revival of Certificate of to Exhibit 3.3 to the
Incorporation March 11, 1998 Form 8-K
3.14 Certificate of Amendment to the Incorporated by reference
Certificate of Incorporation dated to Exhibit 3.4 to the
November 21, 1997 March 11, 1998 Form 8-K
3.15 Certificate of Amendment to the Incorporated by reference
Certificate of Incorporation dated to Exhibit 3.9 to the
June 12, 1998 Registrant's Form 10-QSB
for the quarter ended
June 30, 1998 (the
"Form 10-QSB")
3.16 Certificate of Designation, Incorporated by reference
Preferences and Rights of Series A to Exhibit 3.3 to the
$3.00 Convertible Preferred Stock December 22, 1997 Form 8-K
Form 8-K
3.17 Certificate of Designation, Incorporated by reference
Preferences and Rights of Series C to Exhibit 3.8 to the
Convertible Preferred Stock March 27, 1998 Form 8-K
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Exhibit No. Description Method of Filing
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3.18 Amended and Restated Bylaws Incorporated by reference
to Exhibit 3.10 to
Form 10-QSB
4.8 Form of Common Stock Certificate Incorporated by reference
to Exhibit 4.1 to
Amendment No. 1 to
Form S-1
4.9 Specimen of Series A $3.00 Incorporated by reference
Convertible Preferred Stock to Exhibit 4.1 to the
December 22, 1997 Form 8-K
4.10 Specimen of Series C Convertible Incorporated by reference
Preferred Stock to Exhibit 4.7 to the
March 27, 1997 Form 8-K
10.31 Amended and Restated 1993 Stock Incorporated by reference
Option Plan to Exhibit 10.1 to
Form 10-QSB
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Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
OSAGE SYSTEMS GROUP, INC.
Date: November 18, 1998 By: /s/Jack R. Leadbeater
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Jack R. Leadbeater,
Chief Executive Officer
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